Jersey Unreported Judgments

[2009]JRC002

ROYAL COURT

(Samedi Division)

7^th January 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Breton and Clapham.

The Attorney General

-v-

Dominic Anthony Shane Volante

Toby Henry Rankin

Thomas Paul Doolan

Reece Lewis Falle

Danny De Nobrega Goncalves

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

Dominic Anthony Shane Volante

1 count of:	Taking a motor vehicle without the owner's consent or other lawful authority, contrary to Article 53(1) of the Road Traffic (Jersey) Law 1956.  (Count 1).
1 count of:	Malicious damage.  (Count 2).
1 count of:	Using a motor vehicle uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance)(Jersey) Law 1948.  (Count 3).

Age:  21.

Plea: Guilty.

Details of Offence:

A Ferrari 456 GTA Coupe (valued at approximately £60,000) was taken from a parking space at the underground car park at the Waterfront.  It was there for the purpose of valetting.  The keys to it were in a letter box style key box on the wall and there was another vehicle parked directly behind it.  Volante and Rankin maliciously damaged the key box so as to get the keys (Count 1A and Count 2).  Volante and Doolan had then "bounced" the other vehicle out of the way so that the Ferrari could be reversed and driven away (Count 1A).  Volante then drove the Ferrari out of the car park (Count 1).  He had no insurance (Count 3).  Once outside the car park he picked up Falle who knew that the vehicle had been taken without the owner's consent (Count 5).  As the Ferrari left the car park it shot in front of another car that was attempting to exit causing the barrier to hit the roof of the Ferrari and then to come down.  The next two vehicles were unable to exit.  Goncalves being a passenger in the second vehicle got out and lifted the barrier arm so that the other two vehicles could exit.  The barrier arm was damaged to the value of £763.50 (Count 4).

The Ferrari was then driven to La Braye Slip and then onto Noirmont.  It was then pushed over the incline and stopped a short way down.  It was then set fire to and destroyed.  The only persons who were present at this time were Volante and another individual.  Volante admitted assisting in pushing it down the incline but denied any involvement in setting fire to the vehicle.  The other individual who is not charged with offences claims that it is the responsibility of Volante.  None of the defendants including Volante are, therefore, held criminally responsible for the ultimate destruction of the vehicle.

Details of Mitigation:

The principal offender in that he took and drove away the Ferrari.  He had the benefit of his guilty pleas, youth and residual credit for good character.

The Defence contended that as Volante was a first offender for TADA then he should be dealt with in accordance with the Magistrate Court Guidelines.  It was that he had been "egged on" by others to take the car.  He, therefore, had not acted alone.  It was not his intention to damage the car but simply to push it over the incline as he thought the Police were looking for him.  He pleaded guilty, was remorseful and produced good references.  A driving disqualification would have an adverse affect on his ability to work and to support his family.

Previous Convictions:

Affray and motoring offences.

Conclusions:

Count 1:	6 months' imprisonment.
Count 2:	£100 fine, or 7 days' imprisonment in default.
Count 3:	12 months' imprisonment, concurrent with Count 1.

Total: 12 months' imprisonment and £100 fine, or 7 days' imprisonment in default.

Sentence and Observations of Court:

It was noted that young people had congregated in the lower underground car park.  They spotted the Ferrari which was blocked in by another vehicle.  Volante and Rankin had damaged the box on the wall of the car park to get the keys.  Volante opened and sat in the car.  No doubt egged on by others.  Volante and Doolan bounced the other vehicle out of the way.  Volante drove the Ferrari out of the car park followed by two cars.  The barrier struck the roof of the Ferrari.  The barrier no longer lifted up.  Goncalves used force to lift the barrier up.  Volante picked up Falle, drove to La Braye and then onto Noirmont.  At Noirmont the Ferrari would not start.  Volante became aware that the Police knew the Ferrari was missing and was undecided as to what to do and, therefore, pushed the Ferrari down the incline.  There is a lack of evidence as to who set fire to the Ferrari so there was no charge regarding the destruction of the Ferrari.  Volante took the leading role.  All were involved in serious anti-social behaviour.  The Court was faced with a dilemma: no one has been charged with the damage to the Ferrari and the Court cannot punish an individual where there is no charge.  The Court was disturbed by this despicable and wanton act of damage.  It rejected a suggestion that punishments for the Royal Court should be more severe than those in the Magistrate's Court.  The Royal Court not bound by the Magistrate's Court Guidelines but will take them into account to ensure that there is a degree of certainty.  The Court noted the maximum sentences under the guidelines.  Given that all defendants had pleaded guilty, the Court was of the view that the Crown's recommended sentencing was manifestly too high.  Article 4 of the Young Offenders Law applied to all of the defendants (see AG-v-Cameron [2008] JRC 182).  The Court viewed the conduct as a joint enterprise - without all of their participation the outcome would not have occurred.  Rankin, Doolan and Falle should all receive the same punishment.  Goncalves only caused malicious damage.  The Court had regard to the delay arising out of one of the defendants seeking an "old style" committal.  The Court has had regard to all of the reports and dealt with each of the defendants individually.

Volante played the leading role and was no doubt egged on by others.  Not of good character but first offence of this sort.  Mitigation in terms of guilty plea, co-operation, young, supportive family, excellent references.  No evidence that he drove dangerously or at high speed.  The Court did not accept that disqualification would cause hardship. 

Count 1:	90 hours' Community Service Order, or 3 months' imprisonment in default.
Count 2:	£100 fine, or 7 days' imprisonment in default.
Count 3:	£600 fine, or 6 weeks imprisonment, in default, and 6 months' disqualification from driving.

Total: 90 hours' Community Service Order and £700 fine to be paid at a rate of £100 per week, or 7 weeks' imprisonment in default, and 6 months' disqualification from driving.

Toby Henry Rankin

1 count of:	Aiding or abetting or participated in said criminal act in Count 1.  (Count 1A).
1 count of:	Malicious damage.  (Count 2).

Age:  18.

Plea: Guilty.

Details of Offence:

See Volante above.

Details of Mitigation:

In mitigation he had his guilty plea and youth being the youngest of the Defendants.  He also had the benefit of the co-operation and good character.

The Defence contended that he could be dealt with by way of a financial penalty or a reduced hour Community Service Order.  He gave limited assistance in taking the keys.  He had no further involvement.  He was the youngest, being 18 at the time of the offence.  He had the benefit of good character save for two minor motoring offences.  He was co-operative with the Police and entered a guilty plea at the first opportunity.  He apologised.  References provided.  No longer socialised with the group involved.  He had permanent employment and was thought well of at work.  He had support from his family.  Low risk of re-offending and not likely to re-offend. 

Previous Convictions:

Driving without due care and speeding.

Conclusions:

Count 1A:	120 hours' Community Service Order, or 6 months' Youth Detention in default.
Count 2:	£100 fine, or 7 days' Youth Detention in default.

Total: 120 hours' Community Service Order and £100 fine with 7 days to pay.

Sentence and Observations of Court:

See Volante above.

Assisted Volante to get the key and then assisted Volante in taking the car.  Much the same mitigation, guilty, good character, excellent references, employed and youngest of all the defendants.

Count 1A:	70 hours' Community Service Order, or 2 months' Youth Detention in default.
Count 2:	£100 fine, or 7 days' Youth Detention in default.

Total: 70 hours' Community Service Order and £100 fine to be paid within 2 weeks, or 7 days' Youth Detention in default.

Thomas Paul Doolan

1 count of:

Aiding or abetting or participated in said criminal act in Count 1.  (Count 1A).

Age:  20.

Plea: Guilty.

Details of Offence:

See Volante above.

Details of Mitigation:

He had his guilty plea and his youth.  Also co-operative in interview.  He was not of good character and whilst there had been a breach of earlier Probation Order the Crown was minded not to seek to re-sentence him for earlier offences.  He had been making progress on the Probation Order which had been completed but for 2 months.

The Defendant was 19 at the time of the offence and had pleaded guilty.  His involvement was limited to his conduct in the car park i.e. lifting the other car up.  He had been present at La Braye but not at Noirmont.  He had handed himself in and had been completely co-operative in interview.  He was in full time employment but had lost his job in consequence of the offence.  He had not re-offended.  The family were supportive with good character references.  He was remorseful for the offence. 

Previous Convictions:

6 convictions for a total of 17 offences including common assault, malicious damage, illegal entry, assault on Police and obstruction.

Conclusions:

Count 1A:

120 hours' Community Service Order, or 6 months' Youth Detention in default.

Sentence and Observations of Court:

See Volante above.

Assisted Volante in taking the car by bouncing the other vehicle out of the way.  Not of good character but still had mitigation.  Pleaded guilty, co-operative, handed himself into the Police.  Young and had lost his job due to case hanging over him.  Remorseful and supportive family with excellent references.

Count 1A:

70 hours' Community Service Order, or 2 months' Youth Detention in default.

Reece Lewis Falle

1 count of:

Being carried in a motor vehicle taken without the owner's consent or other lawful authority, contrary to Article 53(1) of the Road Traffic (Jersey) Law 1956.  (Count 5).

Age:  20.

Plea: Guilty.

Details of Offence:

See Volante above.

Details of Mitigation:

He had previous convictions for taking and driving away motor vehicles et cetera, he was aware of the consequences of what he was doing.  He pleaded guilty and had the benefit of youth and residual credit for good character.  Eventually co-operative in interview.

The Defence asked the Court to look at the conduct individually rather than collectively.  They suggested a financial penalty would be appropriate.  The limit of his involvement was that he went for a drive in the Ferrari as a passenger.  It was suggested to the Court that it should follow the Magistrate's Court Guidelines.  He had just turned 20 at the time of the offence and had the offence hanging over his head for 10 months.  He had not re-offended whilst on bail.  He was showing increased signs of maturity.  He expressed remorse.

Previous Convictions:

5 convictions for a total of 29 offences including TADA, larceny, receiving stolen goods, malicious damage, breaking and entry, motoring, common assault.

Conclusions:

Count 5:

120 hours' Community Service Order, or 6 months' Youth Detention in default.

Sentence and Observations of Court:

See Volante above.

Allowed himself to be carried in a vehicle knowing it to have been taken without the owner's consent.  He had a criminal record particularly for motoring offences.  Mitigation of guilty plea, co-operative eventually and young.  There were references, gainfully employed and expressed remorse.

Count 5:

70 hours' Community Service Order, or 2 months' Youth Detention in default.

Danny De Nobrega Goncalves

1 count of:

Malicious damage.  (Count 4).

Age:  21.

Plea: Guilty.

Details of Offence:

See Volante above.

Details of Mitigation:

He accepted that he had acted recklessly.  He had previous convictions for motoring offences and there was a breach of a Binding Over Order but the Order would have expired shortly after the commission of the offence and no separate penalty was sought.  He had pleaded guilty, he had youth and residual credit for good character.

The Defence suggested a financial penalty or a reduced hours Community Service Order.  He was not involved in the taking of the Ferrari.  He was in the car that had followed the Ferrari but he had no control over the vehicle that he was being driven in.  He accepted he was wrong in lifting the barrier.  He had not appreciated his actions had caused the damage.  At the time of offence he was 21.  He had part-time employment and family support.

Previous Convictions:

Driving without due care and attention, illegal entry, miscellaneous motoring.

Conclusions:

Count 4:

120 hours' Community Service Order, or 6 months' imprisonment in default.

Sentence and Observations of Court:

See Volante above.

Malicious damage to barrier to allow two other cars to exit.  Accepted acted recklessly.  Not a good record but again had mitigation of guilty plea, youth and co-operation.

Count 4:

£400 fine to be paid at a rate of £50 per week, or 1 month's imprisonment in default.

J. C. Gollop, Esq., Crown Advocate.

Advocate M. J. Haines for Volante.

Advocate A. J. Clarke for Rankin.

Advocate C. M. Fogarty for Doolan.

Advocate R. Tremoceiro for Falle.

Advocate D. Wilson for Goncalves.

JUDGMENT

THE commissioner:

1.        On the 6^th March, 2008, the defendant's congregated with their friends at the lower underground car park at the Waterfront, a popular meeting place.  They spotted a Ferrari parked in the area used by Jet Valeting Services, boxed in behind a Hyundai vehicle.  Volante and Rankin ascertained that it's keys were in a letter style key box, which they damaged so as to get the keys.  Volante then opened and sat in the car.  No doubt egged on by the others, he and Doolan bounced the car behind out of the way so that the Ferrari could be driven out.  The CCTV footage shows that a large number of people were present.  Volante drove the Ferrari out of the car park, followed by two other cars, in the last of which Goncalves was a passenger.  The barrier struck the roof of the Ferrari which would then not work.  Goncalves got out to assist the vehicle in front and ultimately pulled up the barrier allowing the two cars to exit, thus damaging it's mechanism.  Volante picked up Falle and drove with other vehicles to La Braye slip where the car was driven round the car park.  He then drove the Ferrari to Noirmont Point, followed by other vehicles.  He experienced difficulty in restarting the vehicle and was undecided what to do.  He apparently became aware that the Police knew that the car had been taken.  The other youths left and he and another male pushed the Ferrari over the edge where it became stuck, we were told in order to conceal it.  It was then set alight and burnt out and totally destroyed.  There is a lack of evidence as to who set fire to the Ferrari and this has led to no charge being made in respect of this aspect of the case. 

2.        Volante took a leading role in that he took and drove the Ferrari away uninsured, but all the defendants had a part in what the Prosecution describe, rightly, as serious, anti-social behaviour which showed a lack of respect for the property of others.  The destruction of the Ferrari was a despicable and wanton act of vandalism.  However, the Court has been placed in a dilemma.  The fact of the matter is that no-one has been charged with the damage to the Ferrari and it would be quite wrong, as a matter of principle, for us to seek to punish the defendants for something for which they have not been charged. 

3.        The reality is that, notwithstanding our deep disapproval as to what ultimately happened to this car, we are faced with guilty pleas to offences which, according to the Magistrate's Court guidelines, could have been dealt with way within the powers of the Magistrate.  We reject the suggestion that because the Magistrate, in referring this case up to us, considered these offences warranted punishment beyond his powers, that we should therefore impose sentences beyond those powers.  We do not know precisely why these cases have been referred up, but it could well be that the ultimate fate of the car influenced the decision. 

4.        We also take the view that whilst we are no way bound by the Magistrate's Court guidelines, we should take them into account on the grounds that there should be some element of consistency between the treatment of similar offences in both Courts, unless of course we regard the guidelines to be in error. 

5.        In this case, taking and driving away attracts a maximum sentence, under Article 53(1) of the Road Traffic (Jersey) Law 1956, of 6 months.  The Crown seeks that maximum sentence, notwithstanding the guilty plea, cooperation, youth and other mitigation available to Volante.  The Magistrate's Court guidelines indicate a sentencing range of £750 fine to 2 months custody in the most serious cases of first time offenders.  For driving without insurance the Crown seeks a sentence of 12 months' imprisonment, concurrent, when the Magistrate's Court guidelines indicate a fine of between £400 and £800 and disqualification of between 3 and 6 months, for a first time deliberate offence. 

6.        Whilst we acknowledge the seriousness of the offences to which the defendant's have pleaded guilty, for these reasons we do regard the conclusions sought by the Crown to be manifestly too high. 

7.        A further factor is that all the defendants are subject to the provisions of Article 4(2) of the Criminal Justice (Young Offenders)(Jersey) Law 1994 and in each case we have concluded that the totality of the offending for which they have been actually charged is not so serious that a non-custodial sentence cannot be justified. 

8.        It is quite clear to us that, with one exception, this was not a series of separate offences, but very much a joint enterprise in which all of the defendants played a part.  Without all of them participating the Ferrari would not have been taken and whilst Volante played the leading role, we intend to impose the same penalty upon Rankin, Doolan and Falle to reflect their joint involvement in assisting or participating in the taking away of this car.  Goncalves cannot properly be so treated because he has only been charged with malicious damage.

9.        Before we take the defendants individually, we have also taken into account the delay in this case coming before us.  One of the defendants elected for an old style committal which no doubt contributed to that delay, and whilst no criticism is made of the Prosecution's handling of the case, the fact is that these are all young defendants and these offences were committed in March 2008, some 10 months ago.  During that time they have, without exception, been of good behaviour.  We will now take each of the defendants in turn and we can say at the outset that we have, of course, considered all of the reports supplied to us in respect of all of the defendants.

10.      Volante, as we have said you played a leading role, no doubt egged on by the others.  You do not have a good record, having been sentenced for affray in February 2007, but this is a first time offence for taking and driving away and driving without insurance.  There is much to say in your favour in terms of mitigation; you pleaded guilty and you cooperated with the Police; you are young; you have a supportive family and excellent references and, indeed, you have expressed your own remorse.  It is clear that you are more than fully employed in work and in family businesses and therefore you are leading a productive life and we commend you for that.  There is no evidence that you drove this car dangerously or that you broke the speed limit.  However we do not accept that, for the reasons put forward by Mr Haines, disqualification would impose undue hardship upon you.  Therefore you are sentenced as follows; on count 1 you will serve 90 hours' Community Service, which is the equivalent of 3 months' imprisonment; on count 2 you will pay a fine of £100, or 7 days' imprisonment in default; on count 3 you will pay a fine of £600, or 6 weeks' imprisonment in default.  That makes a total of 90 hours' Community Service and total fines of £700 to be paid at a rate of £100 per week.  You will be disqualified from driving for 6 months from this date. 

11.      Rankin, you assisted Volante get the keys out of the key box and thus assisted him in taking this Ferrari.  In terms of mitigation, again there is much to be said for you; you have pleaded guilty and cooperated with the Police and you are young, indeed you are the youngest of the defendants; you have minor drug convictions, but we do regard you as being of good character.  You are assessed at a low risk of re-offending and have expressed remorse for what you have done.  You too have excellent references and the support of your family, and we note that you too are gainfully employed with a strong work ethic and we commend you for that.  You will be sentenced as follows; on count 1A to 70 hours' Community Service, which is the equivalent of 2 months' youth detention; on count 2 you will be find £100 to be paid in 2 weeks, or 7 days' youth detention in default. 

12.      Doolan, you also assisted Volante in taking the car away by bouncing the car behind it out of the way.  You do not have a good record, but again, as with the other defendants there is much mitigation in your favour.  You have pleaded guilty; you were cooperative with the Police and we accept that you handed yourself in and that everything you told them transpired to be correct and we applaud you for your honesty in that respect; you are young.  We note that you have lost your job as a result of these offences and you have been unable to get re-employment in the meantime, largely because of this case hanging over you.  You too have the support of your family and have expressed extreme remorse, and you have also produced good references.  You will be sentenced as follows; on count 1A to 70 hours' Community Service, which is the equivalent of 2 months' youth detention.

13.      Falle, you allowed yourself to be carried in the Ferrari knowing it had been taken without the owner's consent.  You have a bad record, including motoring offences, but as with your co-defendants there is again much to be said in terms of mitigation.  You pleaded guilty; you cooperated, eventually, with the Police and you are young; you have expressed remorse and you have excellent references and you too, we are pleased to see, are gainfully employed and are industrious.  You are sentenced as follows; on count 5 to 70 hours' Community Service, which is the equivalent of 2 months' youth detention.

14.      Goncalves, you have pleaded guilty to maliciously damaging the barrier to allow the two cars to follow the Ferrari and it is accepted by the Prosecution that you acted recklessly rather than intentionally.  You do not have a good record, but again, as with your co-defendants, there is much mitigation on your behalf.  You pleaded guilty; you were cooperative with the Police and you are young.  We accept that you have been charged with malicious damage only and that therefore you should be treated differently from the other defendants.  You will therefore be sentenced as follows; on count 4 you will be fined £400 to be paid at a rate of £50 per week, or 1 months' imprisonment in default.

Authorities

Road Traffic (Jersey) Law 1956.

Criminal Justice (Young Offenders)(Jersey) Law 1994.

AG-v-Aubin and Others [2007] JRC 119.

AG-v-Cameron [2008] JRC 182.

AG-v-Clark [1987/1988] JLR 448.

Magistrate's Court Guidelines.